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Extortion and Grand Larceny in New York: Your Criminal Defense & an Analysis of NY Penal Law 155.05(2)(e), 155.30(6) and 155.40(2)

With the recent Extortion attempt of David Letterman by Robert “Joe” Halderman fresh in our minds, now would be a good time to share with my readers what constitutes Extortion under New York State law. As a New York criminal defense attorney and former Manhattan prosecutor who supervised the investigation and prosecution of multiple individuals charged with the Extortion of an NBA All Star, I am intimately familiar with Extortion as it is defined under New York Penal Law section 155.05(2)(e) and under Grand Larceny in the Fourth and Second Degree pursuant to New York Penal Law sections 155.30(6) and 155.40(2) respectively.

Before proceeding with an analysis of the Extortion statute, it is important to note that Extortion is specifically defined under section 155.05(2)(e) of the New York Penal Law. Like larceny by trick, false promise and common law larceny, Extortion is a means by which a larceny is perpetrated. According to NY Penal Law 155.05(2):

A person obtains property by Extortion when he compels or induces another person to deliver such property to himself or to a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will: (i) Cause physical injury to some person in the future; or

(ii) Cause damage to property; or

(iii) Engage in other conduct constituting a crime; or

(iv) Accuse some person of a crime or cause criminal charges to be instituted against him; or

(v) Expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule; or

(vi) Cause a strike, boycott or other collective labor group action injurious to some person`s business; except that such a threat shall not be deemed Extortion when the property is demanded or received for the benefit of the group in whose interest the actor purports to act; or

(vii) Testify or provide information or withhold testimony or information with respect to another`s legal claim or defense; or

(viii) Use or abuse his position as a public servant by performing some act within or related to his official duties, or by failing or refusing to perform an official duty, in such manner as to affect some person adversely; or

(ix) Perform any other act which would not in itself materially benefit the actor but which is calculated to harm another person materially with respect to his health, safety, business, calling, career, financial condition, reputation or personal relationships.

Again, because Extortion pursuant to NY Penal Law 155.05(2)(e) is a means by which a larceny takes place, the value of the property taken or attempted to be taken will determine the level of the offense. For example, if the value of the property is extorted is $10,000.00, then the applicable larceny offense would be Grand Larceny in the 3rd Degree, NY Penal Law section 155.35, because the value of the property exceeds $3,000.00, but is less than $50,000.00.

More definitions and analysis after the jump…
According to Grand Larceny in the Fourth Degree (NY Penal Law 155.30(6)):

A person is guilty of grand larceny in the fourth degree when he steals property and when the property, regardless of its nature and value, is obtained by Extortion.

Grand Larceny in the Fourth Degree is an “E” felony punishable by no minimum term of imprisonment and up to 1 and 1/3 to 4 years if you are not a predicate felon and a minimum of 1.5 to 3 years and a maximum of 2 to 4 years in prison.

According Grand Larceny in the Second Degree (NY Penal Law 155.40(2)):

A person is guilty of Grand Larceny in the Second Degree when he steals property and when the property, regardless of its nature and value, is obtained by extortion committed by instilling in the victim a fear that the actor or another person will (a) cause physical injury to some person in the future, or (b) cause damage to property, or (c) use or abuse his position as a public servant by engaging in conduct within or related to his official duties, or by failing or refusing to perform an official duty, in such manner as to affect some person adversely.

Grand Larceny in the Second Degree is a “C” felony punishable by no minimum term of imprisonment and up to 5 to 15 years if you are not a predicate felon and a minimum of 3 to 6 years and a maximum of 7.5 to 15 years in prison.

It is critical to note that under these statutes (155.30(6) and 155.40(2)), the value of the property does not dictate the level of the offense. In other words, if your actions violate 155.30(6) and the value of the property is $25, you could be charged with both Extortion pursuant to this section as well as Petit Larceny pursuant to 155.25. Alternatively, if your conduct falls within the scope of either of these two statutes and the value of the property is $1500, then you would have committed Extortion pursuant to both sections as well as Grand Larceny in the Fourth Degree based on the value of the property. Confused yet?!?!

As long as your conduct falls within the respective definitions you are guilty of that particular theory of Extortion. To make things slight more complicated, the statues are not mutually exclusive. As a result, you could find yourself charged with Grand Larceny in the Second Degree because your conduct falls under 155.40(2) and Grand Larceny in the Second Degree pursuant to 155.40(1) because the value of the property in the Extortion exceeds $50,000.00. Moreover, your activities would also be a violation of 155.30(6).

Hopefully this “Extortion Primer” clears things up more than it muddies the waters when it comes to understanding the law of Extortion. My next entry will address the affirmative defense to this crime as established in the Penal Law.

On Twitter at DefenseLawyerNY.

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2 Responses to “Extortion and Grand Larceny in New York: Your Criminal Defense & an Analysis of NY Penal Law 155.05(2)(e), 155.30(6) and 155.40(2)”

  1. marvin says:

    I got fired from my job, which I think was a violation of ADA of 1990. I don’t want to go through all the hassle of filing a claim with the EEOC and then filing a lawsuit. I’m trying to negotiate a severance package, but the company refused my offer. I have evidence of the discrimination (tape recording of my conversations with my manager), can I tell them that I have this evidence to try to reach an agreement without it being “extortion”?

  2. My advice to you is not to proceed without an attorney. Your conduct may not be criminal, but you run a great risk. You are better off getting legal counsel in that particular area of employment. Unfortunately, with the limited information you provided, I cannot tell you if your actions will ultimately become criminal.